The Copyright Act, 1911, annotated/Introduction

by Evan James Macgillivray

INTRODUCTION.

The Copyright Act, 1911, consolidates and amends the whole law of copyright. When it is supplemented by legislation in the self-governing dominions, and by Orders in Council and Regulations of the Board of Trade, there will be a complete code of copyright law for the whole of the British dominions.

Such a code has long been desired by all those interested in the legal rights of authors, artists and publishers. So long ago as 1878 a consolidation of the law was recommended by a Royal Commission, which carefully considered the whole subject, and reported that they found the existing law "wholly destitute of any sort of arrangement, incomplete, often obscure, and, even when intelligible upon long study, so ill-expressed that no one who did not give such study to it could expect to understand it."

The great obstacle in the way of consolidation and amendment has been the difficulty in coming to a satisfactory settlement with the self-governing dominions. Canada, in particular, has long demanded complete autonomy in the matter of copyright legislation, and it became increasingly obvious that if a consolidating Copyright Act was to be passed, the self-governing dominions would insist on having complete liberty to cut themselves adrift from Imperial legislation if they so desired. Authors and publishers in this country were not unnaturally extremely nervous of the possible consequences of Colonial autonomy. Each self-governing dominion might, by a manufacturing clause, exclude English and American authors from the enjoyment of copyright except upon condition that the book should be reprinted from type set within the dominion. This alone would be sufficiently serious, but there was the further possibility that if Canada adopted a manufacturing clause as against the United States, the latter might retaliate against Great Britain by excluding British subjects from copyright in the United States upon any condition. Unless the publishers in this country could have reasonable assurance that these things would not follow upon the passing of a consolidating Act they were content to abide by the status quo, which, on the whole, afforded a fairly satisfactory protection throughout the British dominions.

It was thus that matters drifted until 1908, when the Berne Convention was revised at Berlin. Great strides had been made in copyright legislation on the Continent since the last revision of the Convention at Paris in 1896, and matters were now ripe for an international agreement very much in advance of the original Berne Convention. The British delegates accordingly signed a treaty which demanded in many respects a larger protection for authors and artists than was accorded by English law. It became obvious that if the revised Convention was to be ratified by Great Britain, substantial alterations would have to be made in our domestic legislation. The position was carefully considered by a Departmental Committee of the Board of Trade under the presidency of Lord Gorell, and the Committee in substance approved of the terms of the Revised Convention, and recommended that it should be ratified and that legislation should be passed to give effect to it in this country.

In order to solve the long-standing difficulty with the self-governing dominions, the opportunity was taken of calling together a subsidiary Copyright Conference of the Colonial delegates who came to attend the Imperial Conference in the summer of 1910. This Conference passed resolutions giving general approval of the Revised Convention, and recommending an Imperial Copyright Act which should apply to the whole of the British Empire, but at the same time make the adoption of the Act optional in the self-governing dominions. The self-governing dominions were to have an absolutely free hand, each in its own dominion, but provision was to be made that if any self-governing dominion did not afford satisfactory protection to the works of British subjects resident elsewhere, then the residents in that dominion might be excluded from the enjoyment of Imperial copyright.

It was upon this basis that the Bill was drafted and the Act passed.

The principal changes which the Act will effect upon the existing law may be briefly summarised—

1. Extension of the term of copyright to life and fifty years (Subject to certain exceptions).
2. Provision that the last twenty-five years of the term of copyright shall be unassignable by the author during his lifetime.
3. Provision that during the last twenty-five years any person may reproduce a work without consent on payment of a ten per cent royalty.
4. Exclusive right of dramatising and translating secured to the author.
5. Dramatic works entitled to protection include pieces in dumb show, ballets and cinematograph productions, and the copyright is infringed by the making or exhibiting of unauthorised cinematograph films.
6. Subject to the right in certain circumstances of making records upon payment of a royalty, the composer of a musical composition gets the sole right of adapting his composition for use upon mechanical instruments.
7. Subject to limitations in respect of remedies, and to the right of making paintings, drawings, engravings or photographs of any architectural work, architectural works are included among artistic works entitled to protection.
8. Taking of short passages for insertion in school books is permitted.
9. Subject to conditions and limitations, an exclusive right of oral delivery is conferred in respect of non-dramatic works, such as lectures, speeches and sermons.
10. Summary remedies, hitherto confined to infringements of musical works, are made applicable to all classes of works, and to infringements of performing rights, but the remedies are not so complete as in the case of musical works.
11. The National Library of Wales is, subject to limitations, included as one of the libraries entitled to free copies of books from the publishers.
12. Copyright subsists from the time a work is created, the condition of protection being, in the case of an unpublished work, that the author is a British subject or resident, and in the case of a published work, that it was first published within the dominions to which the Act applies.
13. Common law right in unpublished works is abrogated, but in the case of a literary, dramatic, or musical work, or an engraving, copyright subsists until publication notwithstanding the expiration of the period of life and fifty years, and if publication is posthumous, then for fifty years after publication.
14. No copyright vests in the proprietor of a collective work unless the author is employed under a contract of service or apprenticeship, or there is an assignment in writing; and when the copyright vests in the proprietor of a periodical by reason of a contract of service or apprenticeship, the author may restrain separate publication.
15. The passing of the copyright by reason of the work having been executed on commission is confined to the cases of engravings, photographs and portraits.
16. The self-governing dominions are given a free hand in copyright matters. Each dominion may adopt or reject the Imperial Act as it pleases. Similarly, each dominion may adhere to the Revised Convention or to the original Berne Convention, or it may decline to adhere to either, and so place itself in the position of a non-union country.

Taking it as a whole, the Copyright Act, 1911, is a valuable measure in the interests of literature and art. It may be said that the Government has made too many concessions, both to the socialistic demands of the members of the Labour Party, who believe that there should be no copyright, and to the demands of the makers of mechanical instruments, who appealed to the Government to save a great industry from possible bankruptcy. It was obvious, however, after the first few days in Committee, that it had become a question of passing the Bill with these concessions or abandoning it altogether. The Government were right in choosing the former course. They have carried an Act from which authors as a class will get much better protection for their work than they have hitherto enjoyed. The Act will undoubtedly simplify the law, and although there may be an increase of copyright litigation for the next few years, this will not continue after a few doubtful points have been cleared up and laymen begin to understand the salient features of the new law. The self-governing colonies have at last got their desire in the matter of copyright autonomy, and there is good reason to believe that it will not be exercised so as in any way to prejudice the market for English books either in Canada or the United States. That all this has been accomplished where so many before them have failed is due very largely to the courageous statesmanship of Mr. Sydney Buxton and Sir John Simon, to both of whom all authors must for ever owe a deep debt of gratitude for (the splendid work which they have done.

E. J. MACGILLIVRAY

3, Temple Gardens, E.C.
January, 1912.